Nieto asks U.S. Supremes to review notorious Austin case

Texas' Court of Criminal Appeals has "cut off meaningful judicial review" in the case of Rosa Estela Olvera Jiménez, who has been seeking to prove she is innocent of the 2003 paper towel choking death of Austin toddler Bryan Gutierrez, Mexico President-elect Enrique Peña Nieto argues in a brief filed this week with the U.S. Supreme Court.

Nieto, former governor of the state of Mexico, where Jiménez is originally from, has joined with the current governor, Eruviel Ávila Villegas, to argue as friends-of-the-court that the CCA has incorrectly rejected a lower court's finding that Jimenez should be afforded a new trial, with the same level of access to expert witnesses that the state regularly enjoys. "The facts here pose a strong case of innocence," the wrote. "Granting Rosa's petition could rescue an innocent woman from languishing in prison for the rest of her life... ."

Jiménez was convicted and sentenced to 99 years in prison for the death of Gutierrez, whom she was babysitting in January 2003 when prosecutors say she shoved a wad of five paper towels down his throat, choking him. Gutierrez died three months later.

At trial, local doctors and medical professionals who treated Gutierrez insisted that the choking had to be intentional. But in a hearing in December 2010, Gutierrez's lawyer Bryce Benjet brought in a contingent of nationally-known experts who disagreed; Gutierrez's choking injuries looked similar to other toddler chokings they'd seen. The incident was likely a tragic accident, each concluded. It was the first time that the court had heard from any qualified defense experts and then-Judge Charlie Baird ultimately concluded that their opinions were credible and on point, and that had a jury heard their opinions it is unlikely that they would have convicted Jiménez, who, Baird ruled, had been denied due process. Baird recommended that Jiménez be given a new trial.

The CCA disagreed. Although the court often approves the findings of a trial court in habeas proceedings – relying on the fact that a district judge, by hearing proceedings and observing witnesses, is in the best position to judge the credibility of witnesses and the potential effect of their testimony – in this case they determined that Jiménez had not been denied due process. A defendant has no right of access to a contingent of experts that would match those available to the state, the court ruled. And although Baird ruled that Jiménez's experts at the 2010 hearing had credibly rebutted the state's case and demonstrated by a preponderance of evidence that she would not be convicted with the aid of expert testimony, the CCA concluded that the evidence had to be "clear and convincing" in order to grant Jiménez relief.

The ruling prompted Benjet earlier this year to appeal to the U.S. Supreme Court. The CCA's decision that clear and convincing evidence is required "reinforces" a split among the federal courts as to what level of evidence is needed, he argues. Resolving the dispute over which standard of review applies when innocence is at stake is important, he argues. "On this issue, the state high courts and federal circuits are in hopeless disarray," he wrote in his writ to the Supremes.

The high court has not yet said whether it will accept Jiménez's case on appeal. This week Nieto and Villegas joined the cause in calling for it to take the case. The CCA was wrong to decide that Jiménez needed to present evidence that would "'unquestionably establish' her actual innocence," they wrote. "No other American court has ever applied such a standard, for good reason: 'medically indisputable'" evidence "is both oxymoronic and more exacting than 'proof beyond a reasonable doubt,' the highest evidentiary standard known to law." And to decide that a denial of experts to an indigent defendant does not violate due process, Nieto and Villegas argue, "defies common sense."

The CCA's ruling threatens not only Jiménez, but also other Mexican nationals living in Texas. The Mexican officials "are concerned that one of our citizens was denied a fair trial and due process in this case – and that Texas courts will continue to apply rules that systematically deprive indigent defendants, including many Mexican nationals, of basic rights in criminal proceedings," they wrote. The CCA has variously granted or denied relief to defendants in a schizophrenic manner – and has previously granted relief in cases with facts similar to Jiménez's – offering "habeas applicants no hope of ever understanding what really motivates the CCA's decisions to grant or deny relief."